Shaw Valenza's Employment Law Pot Pourri / Quick Takes

Here are some quick takes to catch you up on a bunch of recent developments.

Rounding Time to the Quarter Hour

The Ninth Circuit upheld a neutral policy under which an employer rounded time to the nearest quarter-hour.

The time clock system would automatically round back for 7 minutes or less of time worked in the 15-minute period, and would round ahead for 8 or more minutes.  The rounding mechanism was not allowed to be edited by managers.

On that basis, the Court held that the rounding system was neutral on its face.  And as applied to the plaintiff, he lost just $15.00 in pay over the 13 months of punches that he made.  That's how neutral rounding is supposed to pan out.

The Court found that this practice was lawful under both the federal Fair Labor Standards Act and the  California Labor Code.  The case is Corbin v. Time Warner Entertainment etc. and the opinion is here.

California Fair Employment Agency to Revise Gender Regulations

The FEHC is beginning the process of revising its regulations regarding gender identity.   You can read the proposed revisions here.  The proposed additions include a new provision on bathroom / locker facilities:

(A) Employers shall permit employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.

(B) To balance the privacy interests of all employees, employers shall provide alternatives if no individual facility is available, such as, locking toilet stalls, staggered schedules for showering, shower curtains, or other method of ensuring privacy. However, an employer or other covered entity may not require an employee to use a particular facility.

(C) Transitioning employees shall not be required to undergo, or provide proof of, any particular medical treatment to use facilities designated for use by a particular gender.

(D) Employers and other covered entities with single-occupancy facilities under their control shall use gender-neutral signage for those facilities, such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom,” etc.

There also is a proposed regulation regarding pronouns and names:

(h) Recording of Gender and Name

(1) It is unlawful to require an applicant or employee to state whether the individual is transgender.

(2) If a job application form requires an individual to identify as male or female, designation by the applicant of a gender that is inconsistent with the applicant’s assigned sex at birth or presumed gender shall not be considered fraudulent or a misrepresentation for the purpose of adverse action based on the applicant’s designation.

(3) If an employee requests to be identified with a preferred gender, name, and/or pronoun, an employer or other covered entity who fails to abide by the employee’s stated preference may be liable under the Act, except as noted in subdivision (4) below.

(4) An employer may use an employee’s gender or legal name as indicated in a government-issued identification document only if it is necessary to meet a legally- mandated obligation.

Here's a proposal about dress and grooming standards:

(g) Physical Appearance, Grooming, and Dress Standards. It is lawful for an employer or other covered entity to impose upon an applicant or employee physical appearance, grooming or dress standards that serve a legitimate business purpose, so long as any such standard does not discriminate based on an individual’s sex, including gender, gender identity, or gender expression.

However, if such a standard discriminates on the basis of sex and if it also significantly burdens the individual in his or her employment, it is unlawful.  It is unlawful to require individuals to dress or groom themselves in a manner inconsistent with their gender identity or gender expression.

And, finally, something about requiring proof of gender identity:

(1) It is unlawful for employers and other covered entities to inquire or require documentation or proof of an individual’s sex, gender, gender identity, or gender expression as a condition of employment, unless the employer or other covered entity meets its burden of proving a BFOQ defense, as defined above, or the employee initiates communication with the employer regarding any requested adjustment to the employee’s working conditions. 

Attorney's Fees for Prevailing Employers Under Federal Anti-Discrimination Law?

The U.S. Supreme Court decided - 8-0 - that a prevailing defendant in a Title VII discrimination case (and that means ADA, ADEA and section 1988, too), may recover attorney's fees without winning "on the merits."  That means, for example, if a plaintiff insists on bringing a frivolous case that is obviously barred by the statute of limitations, the employer can apply for attorney's fees even though the statute of limitations defense is not proof of non-discrimination.  As Justice Thomas already points out, the defense already has to establish that the plaintiff's case was 'frivolous, unreasonable or groundless" because of an earlier Supreme Court case (that invented that standard).  So requiring a win "on the merits" would have been a whole new burden and the Court wasn't having it.  So, the EEOC owes CRST at least $4 million for its frivolous pursuit of CRST if that ruling holds up on remand.  Wet blanket moment: Where will the EEOC get the money to pay those fees?  Oh. Right.  Us.

That case is CRST Van Expedited, Inc. v. EEOC and the opinion is here.

Statute of Limitations for Constructive Discharge Under Federal Law

The U.S. Supreme Court in an 7-1 decision decided that a "constructive discharge" or forced resignation claim is considered timely or untimely based on the date that the employee gives notice of resignation.

The Post Office in Green v. Brennan, opinion here, argued that the limitations clock begins to run when the employer performs the "last discriminatory act."  But the Court disagreed and reversed the Tenth Circuit:

Ordinarily, a “ ‘limitations period commences when the plaintiff has a complete and present cause of action.’” Ibid. “[A] cause of action does not become ‘complete and present’ for limitations purposes until the plaintiff can file suit and obtain relief.” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U. S. 192, 201 (1997).

 Applying this general rule to the case before it, the Court ruled:

the “matter alleged to be discriminatory” in a constructive-discharge claim necessarily includes the employee’s resignation for three reasons. First, in the context of a constructive-discharge claim, a resignation is part of the “complete and present cause of action” necessary before a limitations period ordinarily begins to run. Second, nothing in the regulation creating the limitations period here, §1614.105, clearly indicates an intent to displace this standard rule. Third, practical considerations confirm the merit of applying the standard rule here.

Of note, the Court made clear that the limitations period begins to run when the employee gives notice of the resignation, not on the date of the resignation.

As promised, a longer article on California's New EEO Policy Requirement

I posted a couple of weeks ago (here) about the California Fair Employment and Housing Commissions new EEO regulations (here), which include specific requirements for anti-discrimination and harassment policies.  I promised to post our longer article for you.  Here it is. 

Of course, drafting a new policy is one thing, but putting in place the mechanisms for conducting investigations, having effective complaint procedures, etc. are something else.  Please work with your HR consultants, employment counsel, PEOs, etc. to get these requirements in place before too long.  The new regulations go into effect on April 1, 2016.

The legislature, agencies and courts are keeping us all busy.  I know it's a challenge for me to stay current.  It's probably tough for you too. My blog posts are less frequent than I would like as of late. But our Firm publishes a bi-weekly article on a current employment law issue, which you can find on our website or subscribe to via our *free* newsletter (Just sayin').

California Fair Employment and Housing Council Considering Regulations Limiting Consideration of Criminal History

The California Fair Employment and Housing Council has taken the first step to issue regulations that would limit employers' consideration of criminal history.  The proposed regulations expressly incorporate a number of existing laws.  They also explain how "disparate impact" standards will be applied to employer practices regarding criminal records.

Some highlights:

- The regulations expressly incorporate bans on consideration of arrest records that already appear in the Labor Code;
- No consideration of any conviction referred to a pre-trial or post-trial diversion program;

- No consideration of expunged, judicially dismissed, or statutorily eradicated convictions;

- Employers may not take action based on "non-felony" marijuana possession convictions more than two years old.  Unhelpfully, they don't say how the two years is measured (neither does the Labor Code section upon which this provision is based).

- The regulations explain that public sector employers may not consider convictions until after the employer determines the applicant meets minimum qualifications for the job.  This is so-called 'ban the box," meaning that public sector applications cannot ask for conviction information. This provision does not affect private sector applications.

- Local ordinances containing tougher proscriptions (such as San Francisco's) are preserved.

- Employers must ensure consideration of convictions do not impose an "adverse impact" on minorities or others protected by anti-discrimination laws.  However, employers may establish that the consideration of a previous conviction is "job-related and consistent with business necessity."  What does that mean?

The criminal conviction consideration policy or practice needs to bear a demonstrable relationship to successful performance on the job and in the workplace and measure the person’s fitness for the specific job, not merely to evaluate the person in the abstract. In order to establish job-relatedness and business necessity, any employer must demonstrate that the policy or practice is appropriately tailored, taking into account at least the following factors:
(A) The nature and gravity of the offense or conduct;
(B) The time that has passed since the offense or conduct and/or completion of the sentence; and
(C) The nature of the job held or sought.

- Employers have to show that bright-line disqualifications distinguish between applicants and employees that do or do not pose an unacceptable level of risk.  That means there has to be a way to conduct an individual assessment of the applicant notwithstanding the crime.

- Employers that consider convictions older the seven years are subject to a rebuttable presumption that the practice is NOT job-related.

- Employers must give employees a chance to explain a conviction is inaccurate.

- Even if the employer demonstrates its conviction policy is job-related and consistent with business necessity, the applicant can show there are less discriminatory alternatives, "such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualification or risk as accurately without significantly increasing the cost or burden on the employer."

- The proposed regulation does not apply when laws require elimination of applicants who are convicted of certain crimes.

The FEHC will be vetting the proposed regulations via a notice and comment period. There will likely be revisions as well. But it appears that California employers will have to conform their policies and practices regarding convictions to new rules in the months to come.  We will keep you posted.

The Council has published more information about the comment period and proposed regulations here.